Lawrence v Becker - [2007] SASC 436

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
LAWRENCE v BECKER
[2007] SASC 436
Judgment of The Honourable Chief Justice Doyle
14 December 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against decision of Magistrate - respondents succeeded in proceedings in Magistrates Court on claim for balance owing for work carried out on defendant's yacht and construction of new rudder - appellant denies liability and counterclaims for recovery of part payment.
Held: No error by Magistrate shown - appeal dismissed.

LAWRENCE v BECKER
[2007] SASC 436
Magistrates Appeal: Civil

DOYLE CJ: Mr and Mrs Becker (“the Beckers”) brought proceedings against Mr Lawrence. They claimed the balance owing for work carried out on his yacht and for making a new rudder for the yacht. Mr Lawrence denied liability, and counterclaimed the repayment of $3000 that he had paid to the Beckers for this work.
The Magistrate found in favour of the Beckers on most issues, but allowed only part of what they claimed for the rudder. She entered judgment for $3616.87 plus interest, overall an amount of $4320. She dismissed the counterclaim.
Mr Lawrence appeals, challenging the Magistrate’s findings of fact.
Background
The Beckers carry out maintenance work on boats in the course of their business.
Mr Lawrence owned a 38 foot steel yacht. He has a degree in science, I gather, and a doctorate in chemistry. He has trade qualifications in boat building. He has owned boats for many years. Mr Becker and Mr Lawrence are both members of the Cruising Yacht Club (“CYC”).
Mr Becker’s case and evidence were to the following effect.
He had known Mr Lawrence for some time. On 23 May 2005 Mr Lawrence asked Mr Becker to clean the hull of his yacht and to remove marine growth. This is called “anti-fouling”. Mr Becker agreed. This involved putting the yacht on slips at the CYC, washing down the hull and scraping off any marine growth. That was done. The evidence was that Mr Lawrence was present when it was done, or at least when it was completed. The work took no more than a few hours.
Mr Lawrence then said that he wanted the hull sandblasted or grit blasted, which I gather involves removing the existing paint, and stripping the hull back to the steel. Then he wanted the hull repainted. For various reasons this could not be done at the CYC.
Mr Becker said that Mr Lawrence instructed him to attend to this, that is to the stripping back and repainting. Mr Becker drove to Beswick’s Boatyard, and arranged with Mr Beswick for him to slip and grit blast the yacht. Mr Becker then returned to the CYC, and told Mr Lawrence what he had arranged.
Next day the yacht was relaunched, and Mr Lawrence sailed it to Beswick’s Boatyard. Mr Becker drove to the yard and met Mr Lawrence there. The yacht was left there, and Mr Becker drove Mr Lawrence back to the CYC.
After a few days the yacht was slipped and the hull was grit blasted by Mr Beswick, pursuant to the arrangement made by Mr Becker with him. This involved removing the rudder. Mr Becker and his worker, Mr Malone, did that. Mr Beswick coated the hull with zinc to seal it.
Mr Becker then instructed his worker, Mr Malone, to paint the hull while the yacht was at Beswick’s Boatyard. Mr Becker helped with this work. Mr Becker said that he discussed with Mr Lawrence the type of paint that he would use, a vinyl paint. He applied three coats of vinyl paint. Mr Malone, the worker who did the work, said that he had applied three coats, and then he applied two more coats at the request of Mr Lawrence. In due course the painting was completed. After that three coats of anti-fouling material were applied.
On 6 June the painting was complete. Mr Becker said that Mr Lawrence came to Beswick’s Boatyard that day. Mr Becker and Mr Malone were there. Mr Becker said that Mr Lawrence told him that he wanted a new rudder made because of some concerns he had about the existing rudder (the details do not matter). Mr Becker said that in Mr Lawrence’s presence he proceeded to draw a template of the existing rudder on plywood or masonite. Then the existing rudder was reattached to the yacht.
In due course the yacht was returned to the water, and sailed away by Mr Lawrence. Mr Becker made a new rudder. The rudder was finished by 8 July 2005.
The Beckers sent Mr Lawrence an invoice dated 21 June 2005, claiming $5841.87 for the grit blasting and repainting. That included the amount paid to Mr Beswick for the grit blasting, and for the use of his slip.
Although the dates are not completely clear, I gather that in early July, after the rudder was complete, Mr Lawrence came to the Becker’s office and made a payment of $3000. According to Mr and Mrs Becker (both of whom gave evidence) he told them that he would pay the balance a few days later, and that $3000 was all that he could obtain from an automatic teller machine at one time. Mr Becker showed Mr Lawrence the rudder, and they discussed how it was built. Mr Lawrence made no complaint about the painting, about the amount charged, or about the rudder.
The Beckers sent an invoice dated 8 August 2005 claiming $3998.20 for making the rudder.
Mr Lawrence made no further payment. He never took delivery of the rudder. The Beckers still have the rudder.
Sometime in August or early September 2005 it became clear that Mr Lawrence denied that he was liable for the amount claimed, but this was only when the Beckers pressed for payment.
Mr Lawrence’s evidence and case were to the following effect.
He agreed that he asked Mr Becker to wash the hull of the yacht and to antifoul it. This was done on the CYC slips. That was all he authorised Mr Becker to do.
Mr Lawrence said that he decided to have the hull grit blasted and painted. He went to Beswick’s Boatyard and arranged with Mr Beswick to do that work. He sailed his yacht to Beswick’s Boatyard and left it with Mr Beswick. He gave him detailed instructions about the work to be done. When Mr Lawrence arrived at Beswick’s Boatyard, Mr Becker was there, but Mr Lawrence had not asked him to come. There was no reason for him to be there.
Mr Lawrence was waiting to hear from Mr Beswick about the progress of the work. He wanted to inspect the hull once it had been grit blasted, and before it was painted.
To Mr Lawrence’s surprise Mr Becker rang him a week or so later to say that he had taken over the painting from Mr Beswick. He said that Mr Beswick was not doing a good job. He said the painting was complete.
Mr Lawrence went to the yard. He denied telling Mr Malone to apply further coats of paint. He assumed that Mr Becker must have done a good job, and so did not complain about Mr Becker taking over. It was only later that he found out that Mr Becker had used vinyl paint, which Mr Lawrence considered unsuitable, and only later that he realised that the price charged was “ridiculous”.
While at the yard Mr Lawrence said that he traced an outline of the rudder on a piece of plywood. He did this because he wanted to “recalculate its efficiency and shape”. His evidence suggests that he thought that the rudder could be improved.
While he was doing this Mr Becker, who was also there, drew an outline of the rudder on a piece of masonite or plywood. Mr Lawrence did not ask him to do this. He did not ask Mr Becker why he did it. He did not ask Mr Becker to make a new rudder.
A few days later Mr Lawrence arranged to relaunch the yacht. He said nothing to Mr Beswick about Mr Becker taking over the job. Sometime later he spoke to Mr Beswick about this, and Mr Beswick simply said that Mr Becker was a “pushy fellow” and that Mr Becker needed the work. Mr Beswick said that Mr Becker had paid him for the grit blasting and for the use of the slip. Mr Lawrence said that Mr Beswick “was a little bit evasive about the whole situation”.
When Mr Lawrence got the first invoice from the Beckers he thought it was fair to pay something, because after all the job had been done. He thought that the amount claimed was twice what it should be.
Mr Lawrence went to the Beckers’ premises, and paid them $3000. He made no complaint about the amount charged, or about the paint used. He did not say that this payment was in full settlement of any claims. In evidence he said he asked for a detailed account, but never got sufficient details. He denied saying that he would pay the balance owing in a few days. He said that he was “amazed” when he was shown the completed rudder, but said nothing about it. He said he did not know what to say.
He said that he was not well at the time, and he said that he thought that he could sort things out with Mr Becker.
Mr Lawrence denied liability because he never agreed for Mr Becker to paint the yacht or to make the rudder. He said the wrong kind of paint was used. He said the paint was not applied properly. He said the charge was excessive. He said that the rudder was not made properly, and that the charge for the rudder was excessive.
The hearing and the Magistrate’s decision
The main issues before the Magistrate were whether Mr Lawrence agreed with Mr Becker for him to have the hull grit blasted and painted; whether the painting work was done properly; whether the charge for the painting work was reasonable; whether Mr Lawrence agreed that Mr Becker should make a new rudder; whether the rudder was properly made, and whether the charge for the rudder was reasonable.
When the case began the parties were conducting their own cases. The Magistrate heard the matter as if it were a small claim. She swore Mr Becker and Mr Lawrence, and heard their evidence topic by topic, each of them cross-examining the other on the relevant topic. That was a sensible approach. The evidence came out reasonably clearly.
Nevertheless, it is clear from the transcript, and the Magistrate refers to this in her reasons, that there was considerable animosity between the parties, and at times there were angry exchanges between the parties. There was also a fair amount of irrelevant evidence introduced.
The Magistrate says in her reasons that as the case unfolded, each party wanted to produce further witnesses. That meant that on several occasions the hearing was adjourned to another day. On the third hearing day Mr Lawrence was represented. That led to some repetition, because he began his evidence afresh.
Not surprisingly, there were occasions when Mr Becker and Mr Lawrence (while unrepresented) failed to present their case fully, or to challenge the opposing case, in the way in which that should have been done.
By and large the Magistrate preferred the evidence of Mr Becker to that of Mr Lawrence. The Magistrate said that Mr Lawrence “dissembled”, and deliberately set out to irritate Mr Becker. She formed an unfavourable impression of Mr Lawrence.
The Magistrate found that Mr Lawrence did instruct Mr Becker to have the yacht grit blasted and painted as Mr Becker claimed.
The Magistrate heard evidence from witnesses on either side about the appropriate paint for the situation, and about the proper method of application. On this point she found in favour of the Beckers.
She also found that Mr Lawrence asked Mr Becker to make a new rudder, and that he did so in accordance with instructions given by Mr Lawrence. But she accepted evidence led by Mr Lawrence that a reasonable charge for the rudder was $1550, not $3998.20 as claimed. She found that there were defects in the design and workmanship of the rudder. The design defects she attributed to Mr Lawrence, and the workmanship defects she seems to have attributed to Mr Lawrence for not putting instructions in writing, but also to Mr Becker. In any event, she awarded the Beckers $775 for the rudder, one half of what she found to be a reasonable price. The Beckers have not appealed against this aspect of her decision.
Credit findings by the Magistrate
The Magistrate considered Mr Becker and Mrs Becker to be reliable witnesses. She considered Mr Lawrence to be an unreliable witness and, by implication, to be unreliable on key issues.
She heard and saw the parties at length. For a good part of the case they were presenting their own cases. The Magistrate was in a good position to assess the reliability of the main witnesses. She was in a much better position to do that than I am.
Having regard to the nature of the issues, and the evident hostility between the parties, I have read the whole transcript of evidence, 247 pages. What is recorded there tends to support the Magistrate’s findings. I accept that at times Mr Becker also behaved inappropriately, but that does not show that the Magistrate was wrong in forming the view that she did.
But the Magistrate’s findings in favour of the Beckers did not rest wholly on her preference for them as witnesses. There are other aspects of the evidence that supported their case, and that supported the Magistrate’s preference for their evidence over that of Mr Lawrence when they conflicted, and particularly when reliability and truthfulness rather than expertise were relevant.
Mr Lawrence’s evidence that Mr Becker took over the job of grit blasting and painting is difficult to accept. Why would Mr Becker involve himself in a task that had been given to Mr Beswick? The slipmaster at the CYC, Mr Went, gave evidence. He supported Mr Becker’s evidence that the yacht was relaunched the day after it was antifouled, not on the same day as Mr Lawrence claimed. More significantly, Mr Beswick gave evidence and contradicted Mr Lawrence’s evidence on all key points relating to his involvement. Mr Beswick said the work was arranged with Mr Becker, not with Mr Lawrence. Mr Malone, the painter employed by Mr Becker, also supported Mr Becker in relation to the instruction to apply further coats of paint. He also gave evidence that he heard Mr Becker and Mr Lawrence discussing the rudder, and that Mr Lawrence wanted the rudder changed. Mr Lawrence gave some evidence that Mr Beswick had quoted a price for grit blasting and painting, and produced a business card on which he said was a figure written by Mr Beswick, which he said was the amount of the quote. Mr Beswick’s evidence was that the business card referred to an unrelated transaction, and had nothing at all to do with the transaction in question. Mr Lawrence’s claim that Mr Becker had taken it upon himself to make a rudder is an unlikely one. Similarly, his evidence that when he was making a template for the rudder, Mr Becker also made one, and Mr Lawrence said nothing about it and asked him no questions, is difficult to accept. Mr Lawrence’s failure to protest when he saw the rudder at the Beckers’ premises is odd. So is his explanation for paying $3000 without any complaint or protest.
As this summary indicates, there was plenty of evidence to support the Magistrate’s conclusion that the evidence of the Beckers was to be preferred on the key issues. I am not persuaded that the Magistrate’s preference for the evidence of the Beckers was wrong.
The claim for the cost of grit blasting and painting
Having regard to her approach to the witnesses, and bearing in mind the summary of the evidence that is above, it was open to the Magistrate to prefer the evidence for the Beckers and to find that Mr Lawrence instructed Mr Becker to grit blast and to paint the yacht. The evidence supports that finding.
The Magistrate found that the paint chosen by Mr Becker was appropriate for the purpose.
Mr Becker used single pack underwater vinyl paint. Mr Lawrence claimed that he should have used two pack polyurethane epoxy paint.
A number of witnesses gave evidence on the merits of these paints.
Mr Becker gave evidence supporting the use of the vinyl paint. So did Mr Beswick.
Mr Lawrence gave detailed evidence criticising the choice of vinyl paint. He called Mr Weston, who was a “corrosion technologist” with expertise in corrosion of shipping. But in the end Mr Weston agreed that either type of paint was suitable, and that while different people held strongly opposing points of view on the matter, it was really a matter of preference. Mr Brown, a representative of a major paint manufacturer, was called by Mr Becker. He had long experience in dealing with marine coatings. He also agreed that either paint was appropriate, and that different people had different views on the matter.
The Magistrate accepted Mr Weston’s evidence. It was open to her to do so. The bulk of the evidence on point supports her decision.
Mr Lawrence gave evidence, and led some evidence, suggesting that the paint should not have been applied with the roller. This was not put to Mr Becker or to Mr Malone. On the evidence, Mr Lawrence must have seen Mr Malone using the roller, but made no complaint. The evidence as to the method of application was not detailed. It was open to the Magistrate to find, in the circumstances, that the paint was applied properly.
Mr Weston gave some evidence, based on the quantity of paint charged for and the surface area of the hull, suggesting that the quantity of paint was not sufficient to coat the hull to the maker’s recommended standard of 75 microns. That evidence was not challenged or directly contradicted by the Beckers. But nor was it put to Mr Becker in the course of his evidence, or to Mr Malone. Mr Lawrence did not raise the point in his evidence. There was no evidence that anyone had examined the paint to see whether it was of a satisfactory thickness. The Magistrate was not persuaded by this evidence. She treated Mr Watson’s calculation as somewhat speculative and was not satisfied that the premises upon which Mr Weston gave his evidence were made out.
Having regard to the fact that the case was not properly presented on this point, I consider that it was open to the Magistrate to reject the complaint that Mr Lawrence made about the thickness of the paint.
In the course of his evidence Mr Weston said that the zinc undercoat was not appropriate, because it could give rise to blistering of the paint applied over the undercoat. There was no cross-examination on that point. Mr Weston was the last witness called for the defence. As far as I can tell, the point that he makes had not been raised before. He was not cross-examined on the point. Nor was the criticism or complaint put to Mr Becker or to Mr Malone when they gave evidence. Apart from that, Mr Weston says that the problem of blistering “can happen within days”. It is reasonable to infer, I think, that if the paintwork had blistered Mr Lawrence would have complained about that.
The Magistrate makes no reference to the evidence on this point. In all the circumstances, I am not persuaded that the Magistrate should have found that the painting was not done in a proper and workmanlike manner, because a zinc undercoat was used.
There was evidence from Mr Becker, and some evidence from other witnesses, relevant to the rates of charging for labour, equipment and consumables. However, it was open to the Magistrate to find that the charges were proper and reasonable.
For those reasons I would reject the appeal against this aspect of the Magistrate’s decision.
The claim for making the rudder
For reasons that I have already given, it was open to the Magistrate to accept Mr Becker’s evidence and to find that Mr Lawrence asked Mr Becker to make a new rudder for the yacht.
However, the Magistrate accepted evidence that the rudder should not have been filled with polyurethane, because that gave rise to a risk of fire if the rudder were later welded.

There was other evidence critical of the design of the rudder, in particular from Mr Peachey, a naval architect, and from Mr Miell, a retired boat builder.
That evidence was not contradicted by the Beckers. Their case was that the rudder was made in accordance with Mr Lawrence’s directions, and so design features were not their responsibility. The Magistrate accepted that claim, and found that Mr Lawrence’s instructions, or a lack of instructions from him, contributed to the defects in the rudder, although the precise nature of the defects was not clearly identified.
This aspect of the case presents some difficulty, in part because much of the relevant evidence was presented without the assistance of legal representation. The claim by the Beckers that Mr Becker made the rudder according to instructions given by Mr Lawrence only emerged clearly after Mr Becker and Mr Lawrence had given evidence. It emerged clearly when Mr Peachey and Mr Miell gave their evidence as part of Mr Lawrence’s case, and Mr Becker put to them that the design features were determined by Mr Lawrence. Of course, they could not comment on that. The issue of instructions as to the design of the rudder was not clearly raised on either side when Mr Becker or Mr Lawrence were giving their evidence, although it was referred to in passing by Mr Lawrence and by Mr Becker when cross-examining Mr Lawrence. The end result is that there is no detailed evidence from Mr Becker about when instructions were given to him by Mr Lawrence, or what they were, and no countering evidence from Mr Lawrence on the point.
The Magistrate’s task in this respect was a difficult one. It is not surprising that she found that Mr Lawrence asked Mr Becker to make a rudder for the yacht. There was plenty of evidence to support that finding. She also found that Mr Lawrence “supervised the making of a wooden template, before the plaintiff set about doing what was asked of them”. That was what Mr Becker claimed. She found that the rudder was to be made in accordance with Mr Lawrence’s directions. There is evidence to support that conclusion. If Mr Lawrence said that he wanted a new rudder made, it seems inevitable that he would have told Mr Becker what to do, that is, whether he should simply copy the existing rudder or whether he should vary the design in some way. I say this, bearing in mind that Mr Lawrence had expertise and experience in boat building. The difficulty is that this aspect of the case was not properly explored on either side.
Neither party applied to the Magistrate for leave to re-open their case on this point. The Beckers were unrepresented throughout, but Mr Lawrence was represented by counsel for the latter part of the case.
My view is that, in a practical sense, the onus was on Mr Lawrence to raise the claim that the design of the rudder was defective, and to do so during the course of Mr Becker’s case. This aspect of his evidence was only raised clearly during the defence case. The Beckers made their answer to this claim clear. It was that they were not responsible for design. Mr Lawrence, although legally represented, did not apply for leave to re-open his case to give further evidence on this point.
In all the circumstances, I am not persuaded that the Magistrate was wrong to make the finding that she did.
The final issue is whether the amount claimed for the rudder was reasonable.
The Magistrate accepted evidence from Mr Miell. She said that his evidence was that a price of between $1500 and $1600 to build the original rudder was “realistic”. She then said that she allowed an amount of $1550 as the reasonable cost “for making the customised rudder using ordinary steel, not stainless steel”.
The basis on which the Magistrate made this decision is not clear. I assume that she treated the cost of making the “customised rudder”, that is, the rudder that Mr Lawrence wanted, as being a little more than the cost of making the original rudder.
Nor is the evidence in question as clear as it might be. At one stage Mr Miell seems to estimate the cost of the original rudder at between $700 and $1000 (but not including GST), but then appears to say that a quotation shown to him for an amount between $1500 and $1600 inclusive of GST was “dear”, but “realistic”. I think this must be the evidence to which the Magistrate was referring.
Although the evidence is not clear, the Magistrate was better placed than I am to assess this aspect of the evidence. I am not persuaded that the Magistrate misunderstood the evidence. In any event, neither party criticised this aspect of her reasons.
In my opinion her conclusion on this point should stand. So should the award to the Beckers of $775, being one half of the reasonable cost. As I have said, the Beckers do not challenge the reduction that the Magistrate made.
Conclusion
No error by the Magistrate has been shown.
The appeal must be dismissed.
I will hear the parties on the question of the costs of the appeal.